United States v. Mitchell

*651 MEMORANDUM *

Mitchell challenges his conviction and sentence on various narcotics-related offenses. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291 , and we uphold both his conviction and sentence.

First, Mitchell argues that “[a]s applied in this case, the sentencing scheme [provided in 21 U.S.C. §§ 841 (b)(1)(A) and 851] is unconstitutional as it has a chilling-effect upon the right to take a case to trial.” However, Mitchell is plainly subject to the enhanced sentencing provisions of section 841 because he has three prior felony convictions. Thus, it was well within the government’s discretion to use the threat of these sentencing enhancements as a bargaining tool during pretrial negotiations. Bord enkircher v. Hayes, 434 U.S. 357, 364-65 , 98 S.Ct. 663 , 54 L.Ed.2d 604 (1978). To the extent Mitchell argues that the government’s actions constitute vindictive prosecution, we disagree because prosecutors may threaten additional charges to dissuade a defendant from going to trial, and then carry through on those threats, without violating the Constitution. United States v. Noushfar, 140 F.3d 1244, 1245 (9th Cir.1998).

Second, Mitchell contends that…